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TMI Blog2016 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... h interest on being pointed out by the audit officer of the respondent vide entry in PLA dated 27.11.2007. When there is no intention to evade payment of duty on account of fraud, wilful misstatement, suppression of fact etc. as mentioned in Section 11AC, the penalty cannot be imposed and further, for imposition of penalty under Section 11AC, the duty must be determined by the excise officer after giving sufficient opportunity to the appellant as required in Section 11A(10), which has not been done in this case and as per Section 11A(b), it is provided that the person chargeable to duty may, before service of notice under clause (a), pay on the basis of (i) his own ascertainment of such duty or, (ii) the duty ascertained by the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit, the Audit officer pointed out the lapse and the appellant thereafter paid the duty along with interest vide PLA entry No.13 dated 27.11.2007. Thereafter the Assistant Commissioner issued a show cause notice and imposed penalty under Section 11AC of the Central Excise Act read with Rule 25 of the Central Excise Rules, 2002 and the appeal filed before the Commissioner (Appeals) was also dismissed. Hence the present appeal. 3. The learned counsel for the appellant submitted that the perusal of the show cause notice shows that the consignment was cleared to the appellant s own unit No.II under valid invoice No.16 dated 8.6.2005. He further submitted that due to ignorance, their excise clerk did not avail the cenvat credit of duty in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been charged, but the same was not deposited. Further, on the invoice, it is clearly mentioned that no sales tax is charged as the goods are being transferred to their own unit No.II which is situated in Andheri (East) and it appears that the goods were intended to be transferred to their own unit, but inadvertently instead of issuing challan, the appellant has wrongly issued the invoice. It is also a fact that the appellant has paid the duty along with interest on being pointed out by the audit officer of the respondent vide entry in PLA dated 27.11.2007. Now the question which arises is whether the appellant is liable for penalty under Section 11AC or not. To this, the appellant has relied upon number of judgments cited above. A perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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